刑事证据制度:从逻辑规则向程序规则的演进——以非法证据排除制度为切入点的分析

Criminal Evidence Law: Evolution from a System of Logical Deduction Rules to a System of Procedural Rules —by Analysis of Exclusionary Rule of Illegally Obtained Evidence

本文以非法证据排除制度为样本,对2012年刑事诉讼法修改后证据制度的发展和变革作了梳理,讨论了为规范司法机关诉讼活动,保障公民基本权利,在充分考虑中外法律传统、诉讼模式等方面差异,充分考虑国情并借鉴外国先进经验的基础上确立非法证据排除制度时的考量因素。非法证据排除制度的建立,体现了我国刑事证据制度从以逻辑推演规则为基础的制度体系向以价值考量为依据的程序规则体系的演进。不仅非法证据排除制度如此,关于证据概念、举证责任、证人保护、证人出庭等的修改也体现了这一特色。由此带来的观念变化也为我国确立更加健全的程序规则起到了促进作用。

Taking the exclusionary rule of Illegally obtained evidence as the sample,this article studied the development and changes of the evidence system after the 2012 amendment to the Code of Criminal Procedure Law and discussed about the issues regarding the establishment of exclusionary rule of illegally obtained evidence.These issues involve regulating the judicial proceedings,protecting the fundamental rights of citizens,taking into account of the Sino-foreign differences in legal traditions,litigation modes,Chinese national conditions and foreign advanced experiences.The establishment of exclusionary rule of illegally obtained evidence reflects Chinese system of criminal evidence has evolved from an institutional system based on the logical deduction rules to a system of procedural rules based on value consideration.Not only the exclusionary rule of illegally obtained evidence reflects this feature,but also the concept of evidence,the burden of proof,the witness protection,the witnesses in court and other modifications do have such feature.The resulting change of concepts will also play a catalytic role for China to establish a more robust system of procedural rules.